— Griffith sued Schlosser, and charged in
It is not necessary to aver in a complaint to recover damages for an alleged assault and battery, that the beating was unlawful and wrongful. Carey v. Sheets, 60 Ind. 17.
An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another, and a battery is the unlawful touching of the person of another. When it is charged that the defendant assaulted and beat the plaintiff, the legal implication is that the act was unlawful, and the burden of justifying his conduct is cast upon the defendant. Benson v. Bacon, 99 Ind. 156; 3 Works Pr. 28.
The only other question discussed relates to the evidence. It is only necessary to say the evidence tends to support the verdict.
The judgment is affirmed, with costs.
The death of the appellant having been suggested on the record, it is ordered that the judgment of affirmance be rendered as of the term at which this cause was submitted, as provided in section 663, R. S. 1881.